Charles Smith v. Charter Communications, Inc.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLES DANIEL SMITH, No. 21-35149
Plaintiff-Appellant,
D.C. No.
v. 1:18-cv-00069-SPW-TJC
CHARTER ORDER CERTIFYING
COMMUNICATIONS, INC., QUESTION TO THE
Defendant-Appellee. SUPREME COURT OF
MONTANA
Filed January 18, 2022
Before: Susan P. Graber and Daniel P. Collins, Circuit
Judges, and Jennifer Choe-Groves, * Judge.
Order
*
The Honorable Jennifer Choe-Groves, Judge for the United States
Court of International Trade, sitting by designation.
2 SMITH V. CHARTER COMMUNICATIONS
SUMMARY **
Montana Law
The panel certified to the Supreme Court of Montana the
following question:
Whether, in an action for wrongful discharge
pursuant to Montana Code Annotated section
39-2-904, an employer may defend a
termination solely for the reasons given in a
discharge letter, as the court held in
Galbreath v. Golden Sunlight Mines, Inc.,
890 P.2d 382 (Mont. 1995), or whether the
1999 statutory amendments have superseded
the Galbreath rule.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
SMITH V. CHARTER COMMUNICATIONS 3
ORDER
Defendant Charter Communications, Inc., fired one of its
employees, Plaintiff Charles Daniel Smith, in early 2018.
Plaintiff then brought this diversity action under Montana’s
wrongful-discharge statute, alleging that Defendant lacked
“good cause” to fire him. Mont. Code Ann. § 39-2-
904(1)(b). 1 The district court granted summary judgment to
Defendant, and Plaintiff timely appeals.
We conclude that the disposition of this appeal turns on
a single question of Montana law: whether a defendant in a
wrongful-discharge action may establish good cause for the
dismissal on grounds that were not set forth in the
employee’s termination letter. The Montana Supreme Court
held in Galbreath v. Golden Sunlight Mines, Inc., 890 P.2d
382 (Mont. 1995), that an employer could not rely on such
additional grounds, but some courts have concluded that
later statutory amendments superseded Galbreath’s rule. If
Galbreath remains valid, then we will reverse the district
court’s summary judgment, which relied on grounds not
stated in Plaintiff’s discharge letter. But if Galbreath is no
longer good law, and additional grounds may be considered,
then we will affirm the district court’s summary judgment.
The outcome of this appeal turns, then, on the vitality of
the Galbreath rule. That central question of state law is
determinative of the instant appeal, and we find no
controlling precedent in the decisions of the Montana
Supreme Court. Mont. R. App. P. 15(3). Thus, we
1
Montana amended its employment-related laws, effective in March
2021. Those amendments do not affect the analysis of this case, but all
citations are to the version of the statute that was in effect when
Defendant fired Plaintiff in 2018.
4 SMITH V. CHARTER COMMUNICATIONS
respectfully certify this question of law to the Montana
Supreme Court pursuant to Rule 15 of the Montana Rules of
Appellate Procedure.
“We invoke the certification process only after careful
consideration and do not do so lightly.” Murray v. BEJ
Minerals, LLC, 924 F.3d 1070, 1072 (9th Cir. 2019) (en
banc) (order) (quoting Kremen v. Cohen, 325 F.3d 1035,
1037 (9th Cir. 2003)). Whether employers may defend a
termination solely for the reasons given in a discharge letter
in a wrongful-discharge action is a “substantial” question of
“broad application,” and the issue has “important public
policy ramifications.” See id. (listing factors relevant to
invoking the certification process). Because Defendant asks
us to recognize, as superseded by statute, a line of decisions
by the Montana Supreme Court, “the spirit of comity and
federalism” also weighs in favor of certification. Id.(quoting Kremen, 325 F.3d at 1037–38). We hesitate to
declare the relevant state-court decisions to be superseded by
statute without first giving the Montana Supreme Court an
opportunity to decide the issue. For all of those reasons, we
exercise our discretion to certify the question to the Montana
Supreme Court.
Pursuant to Montana Rule of Appellate Procedure 15(6),
we provide the following information for the consideration
of the Montana Supreme Court.
FACTUAL AND PROCEDURAL HISTORY
Plaintiff began working for Defendant in 2013, when
Defendant acquired Plaintiff’s previous employer. In 2016,
Plaintiff became a vice president of “Inside Plant” (“VP,
ISP”) for the Mountain States management area, which
encompassed Montana, Wyoming, and parts of Colorado.
Plaintiff had responsibility for managing employees at about
SMITH V. CHARTER COMMUNICATIONS 5
50 sites scattered in the region. Although the parties dispute
the full extent of a travel requirement, it is clear that the job
required Plaintiff to travel to each of those sites at least
quarterly.
In April 2017, Plaintiff’s supervisor issued to Plaintiff a
“corrective action report,” with a written warning selected as
the chosen action. Plaintiff eventually resolved the issues
without further disciplinary action.
In July 2017, Plaintiff took time off from work for a
personal trip. Plaintiff was injured during that trip and spent
more than three weeks in a hospital. He took approved
medical leave until November 2017, when he returned to
work.
During his recovery, in October 2017, Plaintiff posted a
comment on Facebook from his personal account. Although
Plaintiff maintains that his comment was taken out of
context, many persons found the comment offensive, and it
drew significant media attention. Plaintiff listed his
employer on his Facebook page, and someone created a new
post by copying Plaintiff’s employment information and
placing that information next to Plaintiff’s controversial
comment. At Defendant’s request, Plaintiff deleted his
original post.
Plaintiff had been scheduled to return to work on
November 6, 2017. But, as a result of the Facebook post,
Defendant suspended him without pay and issued him a final
warning in lieu of termination. Plaintiff returned to work on
November 20, 2017.
On January 29, 2018, Defendant fired Plaintiff. The
corrective action report listed two reasons for the
termination. First, Plaintiff allowed an employee to work as
6 SMITH V. CHARTER COMMUNICATIONS
an electrician, in violation of the company’s policy. Second,
“[i]n December 2017,” Plaintiff “failed to fulfill the
50% travel requirement to [his] management area.”
Plaintiff filed this action in state court, and Defendant
removed it to federal court. Plaintiff alleges a single claim
that Defendant fired him without good cause, in violation of
Montana Code Annotated section 39-2-904(1)(b). 2
After discovery, Defendant moved for summary
judgment. A magistrate judge issued a recommendation, and
a district judge independently reviewed the motion. With
respect to the first reason, the magistrate judge ruled that
genuine issues of material fact exist as to whether Plaintiff
allowed unauthorized electrical work, the district judge did
not disturb that conclusion, and neither party challenges it on
appeal.
The magistrate judge also recommended denying
summary judgment as to the second reason, but the district
judge disagreed. The district judge did not disagree with the
magistrate judge’s conclusion that there was a genuine issue
of material fact as to whether a 50% travel requirement
existed in 2017. But the district judge concluded that this
dispute was “immaterial” because the undisputed evidence
established that Plaintiff had “failed to meet even [the]
quarterly travel requirement” that Plaintiff conceded was
applicable. Although Plaintiff’s failure to comply with the
quarterly travel requirement was not expressly mentioned in
Plaintiff’s termination letter, the district judge concluded
2
Plaintiff initially brought a second claim, that Defendant violated
its own written policies. But Plaintiff abandoned that claim, the district
court granted summary judgment to Defendant on it, and Plaintiff does
not raise that issue on appeal. Only the wrongful-discharge claim
described in text remains.
SMITH V. CHARTER COMMUNICATIONS 7
that it nonetheless “substantiated” the reasons given in that
letter. On that basis, the district judge held that the quarterly
travel requirement could be considered, notwithstanding
Galbreath, which the district judge stated was still good law.
Plaintiff timely appeals. We review de novo the district
court’s grant of summary judgment. Wolfe v. BNSF Ry. Co.,
749 F.3d 859, 863 (9th Cir. 2014).
DISCUSSION
In determining Montana law, we are bound by the
decisions of the Montana Supreme Court. Albano v. Shea
Homes Ltd. P’ship, 634 F.3d 524, 530 (9th Cir. 2011). If the
Montana Supreme Court has not decided an issue, we must
predict how the court would resolve it. Id. Under Montana
law, as relevant here, a “discharge is wrongful” if “the
discharge was not for good cause.” Mont. Code Ann. § 39-
2-904(1)(b).
If we may consider Plaintiff’s failure to comply with the
quarterly travel requirement, then Defendant had good cause
to terminate Plaintiff. Although the parties dispute the full
extent of Plaintiff’s travel requirements, the parties agree
that he was required to visit all his sites on at least a quarterly
basis, and his travel schedule fell far short of that
requirement. Plaintiff “traveled” to the Billings site, located
across the parking lot from Plaintiff’s office, throughout
2017. But he traveled elsewhere only sporadically, visiting
only a few of the sites he oversaw during 2017. The record
decisively establishes that Plaintiff failed to meet the specific
travel requirement that he visit the sites quarterly. Defendant
therefore had good cause for the termination. See Mont.
Code Ann. § 39-2-903(5) (“‘Good cause’ means reasonable
job-related grounds for dismissal based on a failure to
satisfactorily perform job duties, disruption of the
8 SMITH V. CHARTER COMMUNICATIONS
employer’s operation, or other legitimate business reason.”);
Putnam v. Cent. Mont. Med. Ctr., 460 P.3d 419, 423 (Mont.
2020) (“A legitimate business reason is one that is not false,
whimsical, arbitrary, or capricious, and one that must have
some logical relationship to the needs of the business.”
(internal quotation marks omitted)); id. (holding that courts
generally defer to an employer’s business judgment
especially where, as here, the employee holds a sensitive
managerial position). 3
A. Application of the Galbreath Rule
As noted, the Montana Supreme Court held, in
Galbreath, 890 P.2d at 384–85, that an employer may defend
its termination decision only for the reasons stated in a
discharge letter. Defendant’s discharge letter did not list, as
a reason for the termination, a failure to make quarterly site
visits. Instead, Defendant stated that Plaintiff failed to meet
a very specific requirement: that he travel 50% of the time
in December 2017.
Genuine issues of material fact exist as to whether
Defendant had imposed a 50% travel requirement on
Plaintiff during 2017. For example, Defendant’s written
policy for 2017 contains no 50% travel requirement; by
contrast, Defendant’s written policy for 2018 does contain a
50% travel requirement. Defendant asserts that Plaintiff was
told, at some point during 2017, that he was subject to a 50%
travel requirement. But Plaintiff denies ever receiving that
message, and we conclude that Defendant’s evidence that
3
For the reasons stated by the district court, we reject Plaintiff’s
alternative argument that he presented sufficient evidence of pretext to
rebut Defendant’s showing of good cause. See Putnam, 460 P.3d at 424
(holding that, once an employer sets forth evidence of good cause, an
employee bears the burden of presenting evidence of pretext).
SMITH V. CHARTER COMMUNICATIONS 9
Plaintiff was told of the new requirement does not mandate
summary judgment. A reasonable juror could believe
Plaintiff and disbelieve the contrary evidence.
Contrary to the district court’s conclusion, evidence of
Plaintiff’s failure to meet the quarterly travel requirement
does not substantiate the very specific reason given in the
letter. Employers may introduce any evidence that
“substantiates” a reason given in a discharge letter. See
McConkey v. Flathead Elec. Coop., 125 P.3d 1121, 1127
(Mont. 2005) (evidence of the company’s finances
admissible where the letter stated that the fired employee’s
recommendations “negatively impacted [the employer]
financially”); Jarvenpaa v. Glacier Elec. Coop., Inc.,
970 P.2d 84, 90–91 (Mont. 1998) (evidence of morale
admissible where the letter cited low morale as a reason for
discharge); McGillen v. Plum Creek Timber Co., 964 P.2d
18, 24–25 (Mont. 1998) (evidence of motive as to the
employee’s bad act admissible where the letter cited the bad
act as the reason for discharge). But an employer may not
introduce evidence unrelated to the reasons given in a
discharge letter. Galbreath, 890 P.2d at 384–85 (evidence
of staging of a workplace accident inadmissible where the
letter cited only a failure to provide medical documentation);
Bean v. Mont. Bd. of Labor Appeals, 965 P.2d 256, 261
(Mont. 1998) (evidence of unrelated misconduct
inadmissible where the letter cited only unprofessional
conduct during a specific incident).
The factual issue at dispute here is whether Defendant
required Plaintiff to travel 50% of the time in December
2017. Evidence of Plaintiff’s failure to visit all the sites
quarterly does not speak to that critical disputed issue,
because it does not relate to whether Defendant had imposed
a 50% travel requirement on him. If Plaintiff was not
10 SMITH V. CHARTER COMMUNICATIONS
required to travel 50% of the time, then the discharge letter
does not show good cause: he was unfairly faulted for
failing to do something that he was not required to do. His
failure to visit the sites at least quarterly thus does not
“substantiate” the reason given in the discharge letter. In our
view, this case is comparable to Bean, 965 P.2d at 261,
where the discharge letter listed one specific incident of
misconduct, and the court held that evidence of other
instances of misconduct was inadmissible. The cases cited
by Defendant are not to the contrary because, in those cases,
the evidence had a clear connection to a reason listed in the
discharge letter. See, e.g., Jarvenpaa, 970 P.2d at 90–91
(evidence of morale and operational performance admissible
where the discharge letter stated that the employee had
detrimentally affected morale and operations). The district
court thus erred in granting summary judgment on the
ground that Plaintiff’s travel schedule substantiated the
reason in the letter.
In sum, if the sole question is whether Defendant had
“good cause,” then the district court properly granted
summary judgment to Defendant. But if the Galbreath rule
remains good law, then genuine issues of material fact
remain and, accordingly, the district court erred by granting
summary judgment to Defendant.
B. The 1999 Statutory Amendments and the Galbreath Rule
We turn, then, to the key legal question in this case:
whether the Galbreath rule remains good law following
1999 statutory amendments. Because of the importance of
the issue, we describe the jurisprudential and statutory
history in some detail.
Before the 1999 amendments, Montana Code Annotated
section 39-2-801 required an employer, upon an employee’s
SMITH V. CHARTER COMMUNICATIONS 11
request, “to furnish him in writing a full, succinct, and
complete statement of the reason of his discharge.” In
Swanson v. St. John’s Lutheran Hospital, 597 P.2d 702,
706–07 (Mont. 1979), the Montana Supreme Court
interpreted that passage as binding the employer, in a later
wrongful-discharge action, to justify the firing only for those
reasons stated in the letter that the employee had requested.
The statutory provision, the court held, “becomes a part of
any employment contract entered into by an employer and
an employee in the State of Montana.” Id. at 706. “[I]t is
our duty to interpret [the statute’s] requiring a ‘full, succinct
and complete’ statement to mean exactly what it says.
Therefore, in the case at bar, the only reason which could be
considered by the District Court was the reason set forth in
the [discharge] letter.” Id. at 706–07. Swanson expressly
concerned a letter requested by the employee. Id. at 706.
Sixteen years later, the Montana Supreme Court decided
Galbreath. The court held that the trial court had erred by
admitting evidence of reasons other than the reason
contained in the discharge letter. 890 P.2d at 384–85. The
court reasoned as follows:
In Swanson, we concluded that in a
wrongful discharge action the only reason for
discharge the district court could consider
was the reason set forth in the discharge
letter. Reasons other than the reason stated in
the discharge letter were irrelevant and
excluded from evidence. Swanson, 597 P.2d
at 704. By allowing the above testimony in
the present case to go to the jury, the court, in
effect, permitted the jury to decide whether
the discharge was wrongful based on reasons
other than, or in addition to, the sole reason
12 SMITH V. CHARTER COMMUNICATIONS
stated in the discharge letter. Any collateral
reasons suggested by the evidence, other than
the sole reason stated in the discharge letter,
were irrelevant, and therefore, inadmissible.
Rule 402, M.R.Evid.; Swanson, 597 P.2d
at 704.
We hold that the District Court erred in
allowing [the employer] to offer evidence
suggesting that [the employee] was
discharged for reasons other than the reason
set forth in his discharge letter.
Id. at 385 (one citation omitted). Two justices dissented on
the ground that Swanson was distinguishable because, unlike
the case at hand, the plaintiff in Swanson had requested a
statement of reasons pursuant to section 39-2-801. Id.
at 385–86 (Weber, J., dissenting). The majority did not
respond expressly to the dissent’s view.
Three years later, in 1998, the Montana Supreme Court
applied the Galbreath rule in three separate cases.
Jarvenpaa, 970 P.2d at 90–91; Bean, 965 P.2d at 261;
McGillen, 964 P.2d at 24–25.
The next year, in 1999, the Montana legislature amended
section 39-2-801. The statute no longer requires “a full,
succinct, and complete statement of the reason” for
discharge (emphases added); it now requires only “a
statement of reasons.” Mont. Code Ann. § 39-2-801(1).
Moreover, the statute now provides: “A response to the
demand may be modified at any time and may not limit a
person’s ability to present a full defense in any action
brought by the discharged employee.” Id. § 39-2-801(3).
The earlier version of the statute contained no similar
provision.
SMITH V. CHARTER COMMUNICATIONS 13
The amended statute means that, at least for purposes of
section 39-2-801, for those employees who receive a letter
pursuant to that section, the employer is not bound in
litigation by the reasons given in the letter. Defendant
argues, further, that the amendments to the statute undermine
the foundation for Galbreath’s rule. Galbreath relied on
Swanson, and Swanson relied on section 39-2-801.
Defendant contends that, because section 39-2-801 has been
amended to require the opposite result, Swanson is no longer
good law, and so too is Galbreath no longer good law.
Since the 1999 amendments, the Montana Supreme
Court has discussed the Galbreath rule only once, in
McConkey, 125 P.3d at 1127, in 2005. No party appears to
have argued that the rule had been superseded by statute.
The court held that the rule did not apply in that case,
because the evidence substantiated the reason in the
discharge letter. So McConkey sheds little light on the effect
of the 1999 amendments.
At least two Montana trial courts have held that the 1999
amendments superseded the Galbreath rule. In Bourdelais
v. Semitool, Inc., No. DV 01-073(B), 2002 Mont. Dist.
LEXIS 2244, at *31–32 (Dist. Ct. Mont. Sept. 13, 2002),
aff’d, 77 P.3d 555 (Mont. 2003) (unpublished), the court
stated, without elaboration:
[T]he 1999 legislature amended section 39-2-
801 to state that an employer is not limited to
the reasons set forth in response to the
employee’s request for a written statement of
the reasons for discharge, and may modify its
response at any time. Galbreath no longer
applies.
14 SMITH V. CHARTER COMMUNICATIONS
(citation format altered). Another trial court held the same
in 2007, after McConkey had been decided: “Swanson and
Galbreath . . . were decided on the service letter rule (and
thus have now been superseded by statute).” Stevenson v.
Felco Indus., Inc., No. DV-06-298, 2007 WL 5528566, at *3
(Dist. Ct. Mont. Apr. 16, 2007). The court agreed with a
then-recent law review article on the topic. Id. (citing
William L. Corbett, Resolving Employee Discharge
Disputes Under the Montana Wrongful Discharge Act
(MWDA), Discharge Claims Arising Apart from the MWDA,
and Practice and Procedure Issues in the Context of a
Discharge Case, 66 Mont. L. Rev. 329, 392–93 (2005)). We
have found other Montana trial court decisions that have
applied the Galbreath rule without comment. 4 But we have
not found any other Montana trial court decision that
confronted the question concerning the statutory
amendment. In sum, both Montana trial courts to have
considered the issue have held that the statutory amendments
superseded the Galbreath rule.
Decisions by the federal district court in Montana have
split. One decision held, as the two state trial courts had
held, that the statutory amendments superseded the
Galbreath rule. Erdman v. Wal-Mart Stores, Inc., No. CV-
05-202-M-DWM, 2007 WL 9710331, at *2 (D. Mont. Sept.
13, 2007) (order) (unpublished). “The cases cited by [the
employee] . . . rely on language in a prior version of
Montana Code Annotated [section] 39-2-801 that required
4
Wells v. River Design Grp., No. DV-15-2019-526-WS (D), 2020
WL 8837385, at *3–5 (Dist. Ct. Mont. Dec. 9, 2020) (unpublished);
Reinlasoder v. City of Colstrip, No. DV 14-0340, 2015 WL 4384625(Dist. Ct. Mont. Feb. 15, 2015) (unpublished); Swehla v. Montana, No.
ADV-2009-926, 2012 WL 9510453 (Dist. Ct. Mont. Sept. 21, 2012)
(unpublished); Winslow v. Mont. Rail Link, Inc., No. CDV-1997-552,
2003 WL 25656786 (Dist. Ct. Mont. May 14, 2003) (unpublished).
SMITH V. CHARTER COMMUNICATIONS 15
employers to provide a ‘full, succinct, and complete
statement’ of the reason for discharge.” Id. “Because of
the[] statutory amendments, reasons for [the employee’s]
discharge other than those set forth in the exit interview form
are relevant and admissible . . . .” Id. By contrast, one recent
federal district court decision has rejected that reasoning and
result. McCue v. Integra Imaging, P.S., No. CV 19-147-M-
DLC, 2021 WL 633416, at *4 (D. Mont. Feb. 18, 2021)
(order). 5
The legislative history, which mentions the Montana
Supreme Court’s decisions, including Galbreath, may
contain useful guidance. See Clarke v. Massey, 897 P.2d
1085, 1088 (Mont. 1995) (discussing the role of legislative
history in statutory interpretation); see, e.g., Hearing on S.B.
271 Before the S. Comm. on Lab. & Emp. Rels., 56 Leg.,
Reg. Sess., Ex. 2 (Mont. 1999) (Letter from Law Offices of
Moulton, Bellingham, Longo & Mather, P.C.) (listing three
decisions by the Montana Supreme Court, including
Galbreath); Letter from Gov. Racicot to the Legislature
5
As is true with the state trial-court decisions, some federal district
court decisions have applied Galbreath without comment. King v.
Recreational Equip., Inc., No. CV 16-27-M-DLC, 2016 WL 8711290,
at *2 (D. Mont. Dec. 8, 2016) (unpublished); Weinheimer v. Omniflight
Helicopters, Inc., No. CV 09-06-M-DWM, 2010 WL 11606784, at *5
(D. Mont. Apr. 19, 2010) (unpublished); Schwartz v. Metro Aviation,
Inc., No. CV 08-32-M-JCL, 2009 WL 352599, at *5 (D. Mont. Feb. 9,
2009) (unpublished); Bleek v. Supervalu, Inc., 95 F. Supp. 2d 1118,
1124–25 (D. Mont. 2000). Because no party appears to have raised the
question concerning the 1999 amendments, those cases bear little weight.
16 SMITH V. CHARTER COMMUNICATIONS
Regarding Proposed Amendments (Apr. 16, 1999) (referring
to “recent court cases”). 6
CERTIFICATION
In light of the foregoing discussion, we certify the
following question to the Montana Supreme Court:
Whether, in an action for wrongful discharge
pursuant to Montana Code Annotated section
39-2-904, an employer may defend a
termination solely for the reasons given in a
discharge letter, as the court held in
Galbreath v. Golden Sunlight Mines, Inc.,
890 P.2d 382 (Mont. 1995), or whether the
1999 statutory amendments have superseded
the Galbreath rule.
We acknowledge that, as the receiving court, the Montana
Supreme Court may reformulate the certified question.
Mont. R. App. P. 15(6)(a)(iii).
The names and addresses of counsel for the parties, as
required by Montana Rule of Appellate Procedure
15(6)(a)(iv), are as follows:
Eric Holm; Holm Law Firm, PLLC;
12 North 35th Street, Billings, MT 59101 for
Appellant Charles Daniel Smith
Joshua Becker Kirkpatrick, David C.
Gartenberg; Littler Mendelson, PC; 1900
6
The State Law Library of Montana provides a Compiled
Legislative History of Montana State Senate Bill 271, which includes the
summary minutes of committee hearings and meetings.
SMITH V. CHARTER COMMUNICATIONS 17
16th Street, Suite 800, Denver, CO 80202 for
Appellee Charter Communications, Inc.
The Clerk shall forward a certified copy of this
certification order, under official seal, to the Montana
Supreme Court. The Clerk is also ordered to transmit a copy
of the Excerpts of Record filed in this appeal to the Montana
Supreme Court and, if requested by the Montana Supreme
Court, provide all or part of the district court record not
included in the Excerpts of Record. Mont. R. App. P. 15(5).
The Clerk is further directed to forward a copy of the briefs
filed by the parties.
Submission of this appeal for decision is vacated and
deferred pending the Montana Supreme Court’s final
response to this certification order. The Clerk is directed to
close this docket administratively, pending further order.
The parties shall notify the Clerk of this court within
fourteen days of the Montana Supreme Court’s acceptance
or rejection of certification, and again, if certification is
accepted, within fourteen days of the Montana Supreme
Court’s issuance of a decision.
QUESTION CERTIFIED; PROCEEDINGS
STAYED.